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Thursday, September 27, 2012

This series is looking at whether recreational drug use should be decriminalised. It is doing so by analysing the arguments of Doug Husak and Peter de Marneffe in The Legalization of Drugs. Right now, we’re looking at Husak’s pro-decriminalisation arguments. Eventually, we’ll get to de Marneffe’s anti-legalisation arguments, but that’s some way off yet.

In part one, I outlined some of key conceptual features of Husak’s view. To recap, Husak calls for the recreational use of drugs to be decriminalised. An activity is decriminalised, for Husak, when those who engage in it are no longer deemed eligible for state-sanctioned punishment. This means that decriminalisation would be consistent with a number of public and private anti-drug policies. It is important to bear this in mind when evaluating Husak’s arguments.

In this post, we’re going to start looking at those arguments. In effect, Husak divides his defence of the pro-decriminalisation position into two parts: (i) a negative defence, which consists in rebutting or defeating all the pro-decriminalisation arguments; and (ii) a positive defence, which consists in enumerating reasons to be in favour of recreational drug use. We’ll be dealing with the negative part of the defence first.

In the book, Husak notes (from a US-perspective) that there is no clear “official” rationale for the criminalisation of drug use. Instead, different rationales are offered by different people and organisations. He focuses on four such rationales. The first of which claims that the criminalisation of drug use is justified on the grounds that it protects people’s health. Let’s evaluate that rationale now.

1. The Health Protection Argument
That recreational drug use can be bad for your health is a common and probably well-justified belief. But is this enough for its criminalisation to be warranted? Well, let’s think about what this entails. Following the definition of decriminalisation in part one, those who are in favour of criminalisation must think that it is right and proper to punish those who take drugs for recreational purposes. If the rightness and properness of punishment is grounded in the health of the user, then we get something like the following argument:

(1) If engaging in activity X is seriously harmful to your health, then it is right and proper to punish you for engaging in it.

(2) Recreational drug use is seriously harmful to your health.

(3) Therefore, it is right and proper to punish people for recreational drug use.

The stipulation that the activity must be “seriously harmful” rather than merely “harmful” is designed to avoid an all-to-obvious objection to the argument, namely that it is over-inclusive. Although harmfulness is a generally accepted rationale for legislation (we ignore here the asymmetry between harm-to-self and harm-to-others), it would probably need to reach a certain threshold before criminalisation was warranted.

But obviously that’s not the only issue with the argument. As I have mentioned many times before, there are basically two theories explaining why punishment is warranted: (i) the retributive theory; and (ii) the deterrence theory. According to the retributive theory, punishment is warranted because the person being punished deserves it, i.e. because there is some desert-relation subsisting between them and the object of their punishment. According to the deterrence theory, punishment is warranted if it deters people from wrongdoing. While both theories have their problems, we can assume that both are plausible here. Our problem lies elsewhere, specifically in the question of which theory of punishment is presumed by premise (1) of the argument.

Is it the retributive theory? In other words, are proponents of the protection from harm argument claiming that recreational drug users deserve punishment? Possibly, but this seems wildly implausible. Particularly if we consider analogies with other harmful substances or activities that people engage in (something we’ll be doing a lot of over the remainder of this post). For example, eating a high fat diet or smoking cigarettes. Both are clearly harmful to the people engaging in them, but we wouldn’t usually say that they deserve to be punished, either by incarceration or by other means. They might deserve to suffer the consequences of their unhealthy lifestyle, but that’s a different thing.

So that leaves us with the deterrence theory, which is, on the whole, rather more plausible. Indeed, there is a helpful analogy which underscores its plausibility. It is now commonly accepted that we can punish people, usually fairly mildly, for not wearing a seatbelt or for driving whilst using a mobile phone. And the rationale for doing so is that this will deter people from doing those things. Admittedly, both activities can pose risks to other road users, and that may be a large part of the reason for criminalising them, but the risks they pose to the individual are definitely another part.

If we adopt the deterrence theory of punishment, we’ll need to reformulate the protection from harm argument. As follows:

(4) If activity X is: (a) seriously harmful to your health and (b) punishing it is likely to deter people from engaging in it, then it is right and proper to punish people for engaging in activity X.

(5) Recreational drug use is seriously harmful to your health.

(6) Punishing those who engage in recreational drug use is likely to deter both them and others from engaging in it.

(7) Therefore, it is right and proper to punish people for recreational drug use.

As you can see, this argument sets a two-part test for the justifiability of criminalising activities that are harmful to those engaging in them. What we need to see is whether this test is passed in the case of recreational drug use. We do that by considering the truth of premises (5) and (6). We’ll do this in reverse order.

2. Does Criminalisation Deter Recreational Drug Use?
Premise (6) claims that punishing recreational drug use is an effective deterrent. Is this right? Husak thinks the answer to this is very obvious: no. Indeed, it would seem like the exact opposite is true. But to support this claim we must distinguish between the possible targets of deterrence. We could justify punishment on the grounds that it will deter the punishee from taking drugs in the future; or we could justify punishment on the grounds that it will prevent other people from ever taking drugs; or, of course, we could justify it on the basis of some combination of these two types of deterrence.

So let’s consider the first option: does punishment deter the punishee from future drug-taking? It seems not. Sending people to prison (a common form of punishment for drug offences) is possibly the worst way to prevent future drug use. Drug use is rampant in many prisons, and since opportunities for other kinds of activities scarce, many people actually take up the habit in jail. But that’s not even the biggest problem. The biggest problem is that prisons are bad for your health in lots of other ways. So if the underlying rationale for criminalisation is protecting health, and if traditional forms of punishment are likely to be anathema to that, then we are flirting with an unwelcome form of inconsistency.

What about the second option: does punishment deter people who haven’t yet taken drugs? Husak argues that, going by current rates of drug use, this seems unlikely. He quotes a figure of 15 million American adults using illicit drugs every month, which suggests that current punitive policies are not particularly effective. (note: the statistics are largely derived from the ONDCP, which is slightly biased, and they date from the early 2000s, but the figures have gone up if anything). Of course, the absence of proper controls make it difficult to properly interpret those stats. But relying on jurisdictional experiments (e.g. Netherlands vs. other European countries), it can be argued that countries with more lenient policies have fairly average rates of use.

(Note: the Netherlands, long renowned for its liberal drug policies, has adopted more restrictive policies this past year. The effects of those policies are yet to be known.)

In sum, it seems unlikely that premise (6) is true, but it’s difficult to know since properly controlled trials comparing rates of drug use with and without punishment are missing.

3. Is Recreational Drug Use Seriously Harmful to Your Health?
Premise (5) states that recreational drug use is seriously harmful to your health. As I said earlier, this is intended to exclude merely trivial harms from the scope of criminalisation. But how seriously harmful must something be before it warrants criminalisation? It’s pretty difficult to say really. Husak doesn’t deny that recreational drug use can be harmful, particularly when the substances in question are the more severe drugs like cocaine and heroin, but he argues that the all-important judgment is a comparative one: is recreational drug use more harmful than other activities that we do not think it right to criminalise?

To answer that question, Husak enters a rather murky world of statistics and epidemiological studies. I say “murky” for a two reasons. First, evidence on the positive and negative effects of drug use is extremely mixed. For example, a cursory glance at the wikipedia page on the effects of marijuana reveals that the research is quite a mixed bag. And different organisations present the evidence in different ways, as it suits their purposes. Second, Husak isn’t always clear about where he is deriving his statistics from. I’m assuming, since he mentions it at the outset of the chapter and elsewhere, that the ONDCP is the main source (circa 2005), along with some other studies he mentions specifically, but he doesn’t always say. This makes it quite difficult for me to evaluate his claims and leaves me in a bit of a bind. I’ll simply present what he says and leave it to others, more well-versed in the relevant statistics, to comment and correct me. I should also add that Husak’s data is focused purely on the US so I’ll add some comments about Europe. (Note: the EMCDDA website is the main source for European data)

With those caveats in mind, let’s begin. Husak compares the effects of recreational drug use with the effects of two main comparator classes of substances: (i) licit medicinal drugs and (ii) licit recreational drugs such as tobacco and alcohol. And he compares these substances in relation to two major health-related outcomes: (a) fatalities and (b) non-fatal health problems. Let’s look at each in turn.

Drawing from the ONDCP, Husak cites a figure of approximately 25,000 illicit drugs-related fatalities per annum. This figure is an estimate. It is to be compared with approximately 100,000 deaths from prescription medicines (source: Cohen Overdose, 2001), over 400,000 tobacco-related deaths and over 100,000 alcohol-related deaths (though the latter is hard to estimate). If use of those substances is not criminalised, then why should recreational drug use be treated differently since it is less dangerous? That rhetorical question forms the backbone of Husak’s argument.

But in addition to that, Husak argues that many of the drug-related deaths are attributable to unsafe practices, such as the use of contaminated needles and so forth. Arguably, these could go down if recreational drug use was decriminalised. Data from European countries (EMCDDA) suggests this might be the case since the Netherlands, which historically had the most liberal policies, also had one of the lowest rates of drug deaths. Though, as always, that data doesn’t allow us to specify the direction of causality. At the same time, one might argue that when drugs are decriminalised, we can expect more people to use them and, consequently, the fatality rate to go up. Husak takes this into consideration and claims (without support) that if we adjust the statistics to report the ratio of fatalities per user of the substance, we still reach the same conclusion: recreational drug use is less dangerous than the use of prescription medicines and licit drugs.

Moving away from fatalities to non-fatal health problems, the picture is very much the same. The number of non-fatal health problems said to be linked to illicit drug use is very high, and they cover everything from increased risk of psychosis to reduced sex drive. Husak says he can’t even begin to scratch the surface of the statistics on this. But going purely by hospitalisations, and comparing recreational drug use to the use of licit and medicinal drugs, a similar picture emerges. To quote just one statistic used by Husak (of unknown provenance) 28% of admissions to intensive care units in 2003 were for drug-related problems. Of that 28%, 14% were tobacco-related, 9% were alcohol related, and 5% were related to other drugs.

This is not to say that substances such as marijuana, cocaine and heroin are risk-free. Of course not. Marijuana smoke is carcinogenic, perhaps more so than tobacco smoke. But marijuana can be consumed in smoke-free ways and marijuana users tend to smoke far less than tobacco smokers. Cocaine is obviously dangerous in excessive amounts, and has been linked to higher rates of heart disease, but so are many other substances (common foods) and their use has not been criminalised. Finally, heroin users have notoriously unhealthy lifestyles, but, Husak argues, this does not seem to be linked to their opiate use by itself. Methadone users, who don’t have to resort to petty crime or prostitution, can have pretty healthy lives.

Now, to be sure, the results of this statistical analysis can cut both ways. In other words, even if recreational drug use is less dangerous than other non-criminal forms of use, the problem could be that those other forms of use should be criminalised, not that recreational drug use should be decriminalised. Still, Husak submits that the libertarian impulse — i.e. the one favouring decrminalisation — is more plausible here. If we are committed to the foundational principles of liberalism, then we should not be punishing people for harming themselves.

Okay, that brings us to the end of this post. As we have seen, Husak thinks the health protection rationale provides a poor basis for current criminalisation policies. But this is only one part of his negative defence of decriminalisation. In the next post we look at how he dismantles another alleged rationale for drug criminalisation: the protection of children.

Tuesday, September 25, 2012

This series of posts will look at a perennially popular topic: should drug use be decriminalised? No doubt, this is an issue on which many people have already made up their minds. But there must still be some who are unsure. If so, this series should help them to wade through (some!) of murky concepts and arguments associated with drug decriminalisation.

As always with this blog, I’ll be using a particular set of writings to assist me in addressing this topic. In this instance, it’ll be the book The Legalization of Drugs by Douglas Husak and Peter de Marneffe. This book forms part of the Cambridge University Press For and Against series. Unsurprisingly, this means the book consists of two competing views on the issue of drug decriminalisation. On the one hand, we have Husak’s pro-decriminalisation view, and on the other we have de Marneffe’s anti-legalisation view. I hope to cover both over the next few posts.

In this first post, I’ll kick things off by looking at how Husak frames the whole debate. As he makes clear from the opening chapter, he wants to argue for a particularly narrow conclusion, which we may call Husak’s View:

Husak’s View: We ought to decriminalise the recreational use of drugs.

On the face of it, Husak’s view might seem pretty straightforward, but philosopher’s are rarely that. Husak’s View contains a number of tricky concepts, and in order to best understand his pro-dcriminalisation argument, we need to understand those concepts. Thus, in the remainder of this post, we’ll look at three conceptual issues. First, we’ll try to explain what decriminalisation is. Second, we’ll try to explain what decriminalisation is not. And third, we’ll consider what we mean by ‘drugs’ and the ‘recreational use’ thereof.

1. What is Decriminalisation?
A while back — back when I was writing about the decriminalisation of incest — I tried to explain what it meant to decriminalise something. When I wrote that post I was relying largely on my own reasoning about the topic. Consequently, I was somewhat relieved to see that Husak adopted a definition of decriminalisation which was basically in tune with my own:

Decriminalisation: An activity or state of affairs is decriminalised if, and only if, one is not eligible for punishment by the state as a result of engaging in that activity, or being found in that state of affairs. This can be achieved in one of two ways:

De JureDecriminalisation: The statute or law that criminalises the activity or state of affairs is repealed.

De Facto Decriminalisation: The statute or law that criminalises the activity or state of affairs is no longer enforced.

De facto decriminalisation is quite common, but de jure is clearly more desirable since, as long the crime remains on the statute book, there is always a danger, however remote, that some zealous official will try to enforce it. But leaving the de jure/de facto distinction to the side, there are several interesting features of this definition of decriminalisation.

First, note how it refers to both “activities” and “states of affairs” being decriminalised. You might find this unusual since most crimes that you care to think of are conduct based. For example, the crimes of theft or murder require some action on the part of the accused. Isn’t that true of all offences? Not quite — although there is some debate about this. Curiously, being found in a particular state of affairs, irrespective of how you got there, is sometimes enough to make one eligible for criminal sanction. And drug possession offences are the classic example of this: merely being found with drugs on your person is sometimes enough to be found guilty of a crime.

A second interesting feature of this definition is that it speaks of “eligibility for punishment” rather than punishment itself. Why is this? Very simply, not every crime is detected and not every crime is prosecuted. Consequently, not every crime is punished. But just because one isn’t punished does not imply that one didn’t commit a crime or that a particular activity/state of affairs isn’t criminalised. Eligibility for punishment is enough for that.

But that brings us to a third issue: what exactly is a punishment? Husak explicitly raises the example of drug treatment here. A recent trend in the so-called “War on Drugs” is that drug offenders are offered a choice between undergoing drug treatment and going to jail. Now, clearly, going to jail is a punishment, but does that mean undergoing treatment is not? Husak thinks its hard to say. Treatment under these particular conditions may simply be a different type of punishment. Not an alternative to punishment. Lack of clarity on punishment can make it difficult to decide whether something has been decriminalised. (Refer back to my series on consequentialist theories of punishment for more on the definition of “punishment”).

That leads, nicely, to a fourth issue, one that is not directly about the definition of decriminalisation itself, but is about the complexity of decriminalisation. Ask yourself: is driving decriminalised? How about practicing medicine or law? On first glance, most people tend to think the answer is “yes”: it isn’t illegal to drive a car or to practice medicine or to hang up one’s shingle as a lawyer. But that’s only half the picture. In reality, each of these things is a criminal offence under particular conditions. One cannot legally drive without a licence, or practice medicine or law without being properly credentialed. To do any one of these things would be to open oneself up to possible criminal sanction.

This fourth issue reveals something important about “decriminalisation” rhetoric, something that is not always flagged-up in conventionally debates about the topic: to decriminalise something is not to render it always and everywhere permissible.

2. What Decriminalisation is Not
The complexity of decriminalisation is underscored by considering the kinds of policies and laws with which Husak’s View is consistent. As he himself points out, decriminalising the recreational use of drugs would be consistent with the following four things:

Other Anti-Drug Public Policies: Just because the state no longer punishes recreational drug use does not imply that the state must support it. The state could still introduce policies that discourage drug use. For instance, as with smoking, the state could impose high taxation those who use drugs.

Private Anti-Drug Policies: Just because the state no longer punishes recreational drug use does not mean that private corporations or entities cannot prohibit drug use. For instance, companies could still impose random drug testing on their employees, and fire those found to be using. That might be quite “punitive”, but it would not be the same thing as state-sanctioned punishment.

Criminalisation of Drug Use in Particular Contexts: Just because criminal sanction is removed from some forms of drug use does not mean that it need be removed from all forms in all contexts. For instance, as with alcohol consumption, the state could make it a criminal offence to drive while under the influence of a narcotic substance.

Criminalisation of Non-Use Drug-related Activities: Finally, just because the state no longer punishes drug users, it does not follow that all those involved in the distribution and supply of drugs are to be free from criminal sanction. Whether the state choose to facilitate and licence those activities is another question.

To be clear, Husak is not advocating any one of these things. Indeed, I get the impression he would be opposed to most of them. His only point is that his view is consistent with them.

Although I accept Husak’s point on this matter, I find it slightly disingenuous. Yes, of course, his view is not inconsistent with the four things outlined above. Not formally inconsistent at any rate. Nevertheless, removing criminal sanction is an important signal. Arguably, once you do this you signal some kind of tolerance or acceptance of drug use, which may make it more difficult to argue for other restrictive policies. Furthermore, at least one of the pro-decriminalisation arguments that Husak subsequently offers suggests that there is some positive value to recreational drug use. If we accept this, then the grip that other restrictive policies have on our psyches may be weakened.

3. Drugs and Recreational Use
Now that we are a little clearer about the nature of decriminalisation, we can focus on the other aspects of Husak’s View, namely: the activity he thinks ought to be decriminalised. This is the “recreational use of drugs”. There are two questions to ask about this activity. First, what is a “drug”? And second, what is “recreational use”?

Looking to the first question, Husak suggests that most definitions of “drug” are inadequate. The definition most commonly used in statutes prohibiting drug use (according to Husak) is “any substance other than food which by its chemical nature affects the structure or function of the living organism”. The problem is that this is hopelessly over-inclusive, potentially covering caffeine, alcohol, and vitamin supplements among other things. To avoid the over-inclusiveness problem, people sometimes appeal to the distinction between licit and illicit drugs. But this distinction presupposes that some substances ought to be illegal, which is a presumption we wish to avoid in this debate.

So, in the end, it seems best to avoid all definitions and focus on specific kinds of drug, like marijuana, cocaine and heroin (to name but a few). But this would demand a very fine-grained level of analysis (with different arguments offered for and against each substance) and Husak is reluctant to do this since his pro-decriminalisation argument is intended to cover many different substances. Consequently, he perseveres with the general term “drug” on the grounds that, for all its imperfections, we still kinda-sorta know what we’re talking about when talking about drug decriminalisation. Nevertheless, he acknowledges that his arguments will be most plausible when applied to marijuana. This is significant since de Marneffe’s anti-legalisation argument works with heroin predominantly in mind.

Turning to the second question, Husak defines recreational use as: use that is intended to seek some positive psychological state. It is important not to make the mistake of referring to recreational and non-recreational drugs. Such references presume that there are different categories of substance, when in reality there are only different categories of use. The same substance can be used for both recreational and non-recreational purposes. Further, Husak suggests that the distinction between medical and recreational use is not a particularly useful one. This is important since the medical use of some drugs has been decriminalised in different parts of the world, while the recreational use has not. Husak doesn’t think there are strong grounds for this distinction. Why not? Because the lines between the recreational and the medical have become blurred. Part of this has to do with the increasing medicalisation of parts of everyday life. Thus, for example, improving our moods might be thought a classic example of recreational drug use. But, of course, nowadays mood regulation and improvement is seen as a medical (psychiatric) issue too.

In conclusion then, Husak is calling for the decriminalisation of recreational drug use. By decriminalisation he simply means the removal of eligibility for state-sanctioned punishment from those who use recreationally use drugs. This is consistent with a number of anti-drug public and private practices. Furthermore, it is consistent with the criminalisation of other parts of the drug trade and with the criminalisation of drug use in particular contexts. It’s not entirely clear what he means by “drug”, but we kinda-sorta know the substances he has in mind. And while we know he defines recreational use as use that is intended to seek some positive psychological state, we also know that he thinks the line between recreational and other kinds of use (e.g. medical use) is a blurry one.

So that’s the general framework within which Husak operates. In the next post, we’ll start looking at the arguments Husak offers in support of his pro-decriminalisation stance.

Thursday, September 20, 2012

This is the final part of a brief series on the desirability of immortality. The series is working off Aaron Smuts’s article “Immortality and Significance”. Smuts’s article looks at and critiques Bernard Williams’s classic argument for the tedium of immortality, before formulating a new argument for the undesirability of immortality.

In part one, I looked at Williams’s argument, and the various critiques thereof. In part two, I introduced Smuts’s argument. In essence, his argument holds that immortality would be undesirable because it would rob our decisions of significance, thereby leading to a complete motivational collapse. Two versions of this argument were considered in part two. The first, inspired by the work of Martha Nussbaum, held that the finite background against which our decisions are made imbues them with significance. The second, inspired by Borges’s short story “The Immortal” held that immortality would remove the possibility of personal achievement.

The second argument was deemed the better of the two and, reading between the lines, seems to be the one that Smuts’s endorses. To recap, the argument looked like this:

(5) The possibility of personal achievement is one of the key motivators of human behaviour; one of the things that lends significance to our decisions.

(6) In order for there to be personal achievement there must be some sacrifice, some triumph over adversity, some increase in level of skill, or something that separates the person who achieves from everyone else.

(7) In an immortal existence everything that can happen or be made to happen will eventually happen to everyone through mere perseverance or chance; there is no triumph over adversity etc.

(8) Therefore, in an immortal existence, there will is no possibility of personal achievement (or, more mildly, the possibility will eventually disappear) (from 6 & 7).

(9) Therefore, in an immortal existence our decisions will lack significance and we will not be motivated to make them (from 5 & 8).

In this post we will subject this argument to the scrutiny it deserves. In particular, we will consider whether this argument correctly identifies the requirements for personal achievement (premise 6) and whether it is really true that immortality would make it impossible to satisfy those requirements (premise 7).

1. Achievement and Immortality - A Complex Dilemma
An obvious objection to the argument is that achievements of a sort would still be possible in an immortal existence. Smuts’s gives the example of discovering calculus. Now, obviously calculus has already been discovered, but suppose it were not (or, if you have a sufficiently fertile imagination, suppose some similarly impressive but as-yet-undiscovered mathematical theory could be discovered), would it not be a mark of personal achievement for an immortal to discover it?

Perhaps, but the key question for Smuts’s is not whether it would be an achievement from the outside looking in (so to speak) but whether it is something that an immortal would be motivated to achieve from the inside looking out. After all, the real thrust of his argument is that (ultimately) immortality leads to motivational collapse by robbing the immortal of the subjective desire for further striving, not that all achievements are (objectively speaking) impossible. And he thinks, for an immortal, the possibility of discovering something like calculus would not be enough to keep the motivational juices flowing.

To support this conclusion he presents a rather complex set of dilemmas. To kick things off, he asks us to imagine that one lives an immortal life with fixed abilities (the possibility of non-fixed abilities is considered later). If one has fixed abilities then, over the course of an immortal existence, one will reach a plateau in terms of what one can achieve. In other words, one will eventually exhaust all of one’s potential. But this means that, when it comes to discovering things like calculus, one either has the ability to do so or not. And this leads to a set of dilemmas, each of which is traced out in the following argument, and each of which lends support to Smuts’s Thesis that immortality leads to motivational collapse.

(10) If an immortal has fixed abilities, then they will either be able to succeed at a project or not.

(11) If they are able to succeed it will either be through sheer diligence or it will be easy.

(12) If success is easy it is no reward and will not provide sufficient motivation over the course of immortality.

(13) If success is achievable through sheer diligence, but there is nothing to lose through sheer diligence (which is true in the case of the immortal), then it is not rewarding and will not provide sufficient motivation over the course of immortality.

(14) Therefore, if the immortal is able to succeed it will not be sufficiently rewarding to sustain motivation over the course of immortality (from 11, 12 and 13).

(15) If they are unable to succeed, then they are doomed to failure.

(16) If they are doomed to failure, they will be endlessly frustrated by a lack of success and eventually lose the motivation to pursue the project.

(17) Therefore, if the immortal is unable to succeed, they will eventually lose all motivation to pursue the project (from 15 and 16).

(18) Therefore, if an immortal has fixed abilities, they will not be motivated to pursue potentially objectively significant projects over the course of their immortality (from 10, 14 and 17).

The diagram below might help you to navigate your way through this dilemma.

Since there are so many premises, there are many potential avenues for critique and discussion. However, the key to the argument lies in premises (12), (13) and (16). Smuts offers explicit defences of each, so let’s consider those now.

2. Why would potential success not be rewarding?
Smuts takes premise (12) to be an obvious truth. He offers the example of the experienced chess player going up against the novice setting on a computer chess programme. This would offer no challenge, and they would soon tire of repeat games. The same would be true of discovering mathematical or scientific truths. If it all comes to an immortal too easily they will grow bored with such projects.

So that brings us to premise (13), which is a slightly more complicated beast. On the face of it, success that is won through diligence and hard work is exactly the kind of success that is most rewarding for us human beings. Think back over your own life. No doubt the achievements of which you are most proud are those that involved hard work and diligence. I know this is certainly true of me. To take one example, I am proud of doing well in school and college, both of which required me to delay certain forms of gratification, and spend long hours studying, in order to achieve good grades and results.

But therein lies the rub. As Smuts points out, what made my achievements so personally rewarding was that they involved potential losses as well as potential gains. In spending those long hours studying, I was giving up the opportunity to do other things, I was running the risk of not doing well and wasting my time, and so on. The problem is that none of these things is true of the immortal. Since they live forever, they make no sacrifices when they decide to pursue something through sheer diligence. They always have the option to give it another shot, to enjoy the short-term pleasures now (if they are not already bored with them) and return to the long term ones later. Hence the “nothing to lose” clause in premise (13). It is submitted that this clause makes that premise more plausible.

Nevertheless, there are a few wrinkles to iron out. First, is it not possible that an immortal would have something to lose if they delayed in the performance of a task? For example, is it not important, when it comes to discovering things like calculus, to have priority in doing so? Newton and Leibniz fought over who had discovered calculus first, would immortals not do the same? Indeed, would it not be more important for immortals since that is perhaps the only thing that could make their achievements personally significant?

One solution to this problem, considered by Smuts, is that of recurrence and amnesia. It is possible that over the course of an immortal life, historical discoveries could be forgotten and so one would get the chance to rediscover calculus at a later time. Of course, this implies some collective form of amnesia which might make immortality undesirable, at least from an objective perspective. Indeed, Smuts specifically says “it is hard to see how the prospect of life as a serial amnesiac could be in any way desirable” (p. 143). Objectively speaking, I agree. But Smuts’s seems to forget here that what matters for his argument is not the objective perspective but the subjective one: would there be sufficient motivation from the perspective of the individual immortal? Serial amnesia, however objectively undesirable, might still provide sufficient internal motivation. If I have forgotten past achievements — either my own or those of others — I may be motivated to pursue them again.

An alternative solution, again considered by Smuts, is that precedent setting could not provide perpetual motivation. If one has fixed abilities, then eventually one will reach one’s intellectual limits and be unable to discover any more new theories and concepts. So, one will eventually exhaust one’s motivational resources even if precedent setting can provide some initial motivation. This seems like a stronger objection to the precedent-setting argument but one must remember the stipulation of fixed abilities to appreciate it fully.

3. Why would eternal frustration be demotivating?
So much for the first major horn of the dilemma. What about the second, the one that covers the immortal who is doomed to failure? Premise (16) states that they will lose their motivational oomph because, to borrow a phrase from Smuts, they will be trapped in “a prison of eternal frustration”. The obvious allusion here is to the story of Sisyphus, doomed to an eternity of rolling a boulder to the top of the hill only for it to fall back down to the bottom and for the process to start all over again. Surely, despite what Camus might have said, Sisyphus’s existence is deeply undesirable.

Again, a problem with this argument is that it looks at things from an objective rather than a subjective perspective. Objectively speaking, an eternity of endless frustration seems rather demotivating, but how can the immortal know that their efforts will lead to endless frustration? They might think that they are on the brink of a breakthrough, and this might provide sufficient internal motivation for them to keep going.

But this seems implausible. If an immortal were struggling to come up with a unified field theory for centuries, and was constantly failing in their efforts, they would surely begin to doubt whether they had the ability to solve that particular intellectual puzzle. As such, they might begin to believe they were doomed to an eternity of endless frustration and so lose their motivational oomph through experience. Their only possible salvation would be if there were an infinite number of intellectual puzzles to which they could transfer their attentions.

4. Non-fixed Abilities and Summing Up
That brings us to the end of the dilemmas posed by living an immortal life with fixed abilities. What about an immortal life with non-fixed abilities? If an immortal could constantly improve themselves, then they would avoid most of the problems alluded to above. Since they would live forever, and since they would constantly improve their abilities, they would eventually reach a godlike status. They would be omnipotent and omniscient, guaranteed to succeed in every endeavour.

But this would lead to a new set of problems. First, there are some questions as to whether personal identity would be preserved with such godlike being — i.e. there are questions as to whether it would still be “you” that was living out the immortal life. Second, if one was constantly in conflict with other godlike beings, then one’s endeavours could be thwarted or erased by them. This would surely lead to frustration. And third, even if harmony between all godlike beings could be achieved, the decisions and actions of such beings would lack significance. Achievements would be too easy, every decision could be revoked and the slate wiped clean. There would be little satisfaction to be found in exercising boundless powers.

So, in conclusion, Smuts thinks that immortality would be undesirable. If one lived forever, one’s decisions would lack the features required for motivation. Either one could achieve everything with great ease, or without meaningful sacrifice, neither of which would be particularly satisfying, or else one would be doomed to an eternity of frustration, which would eventually grow old.

It should be noted, as some have pointed out in the comments to previous entries in this series, these arguments have all assumed that the immortal is one who is “doomed never to die” and thus stuck with living forever. But this doesn’t mean that a really long life, or a life with the option of voluntary death, would be undesirable. Many of us have projects and desires that we can’t fulfill in the 80 or so years we are typically given. Consequently, we’d like the option of living for as long as things seemed interesting to us. Nothing in the preceding arguments directly undermines the desirability of such things.

Still, I think these arguments about immortality are important, and the conclusions reached above (if correct) are significant. For if we did manage to extend human life indefinitely, we would have to seriously address the issue of immortality. And unless living forever was truly desirable, we would have to become comfortable with our own eventual deaths.

Friday, September 14, 2012

This is the second in a brief series of posts on the topic of immortality, tedium and significance. It deals with Bernard Williams’s classic argument which held that an immortal existence would be an unbearably tedious one; one that no right-thinking human being should desire. But it does so through the lens provided by Aaron Smuts’s article “Immortality and Significance”. In this article, Smuts’s provides a defence of Williams’s basic thesis — viz. immortality would be undesirable — but he does so for different reasons.

In part one, I covered Williams’s argument and some of the basic criticisms thereof. As we saw, Williams claims that categorical desires are needed in order for life to be worth living. The problem is that if one lived forever, one would satisfy all of one’s categorical desires and end up being bored and apathetic. Williams’s argument was challenged from a variety of angles, some suggesting that categorical desires could be increased and rejuvenated, and some suggesting he placed overly-stringent conditions on a desirable immortal existence. In relation to this latter critique, the point was made that Williams claimed that the “self” must be preserved in order for the life to be worth living, but failed to give proper consideration to the possibility of living a life of varied but overlapping selves. Smuts’s himself agreed with this criticism of Williams’s argument.

With this preliminary discussion out of the way, we can move on to consider Smuts’s own arguments against the desirability of immortality. As we shall see, there are several distinct arguments that Smuts’s considers, but they all cluster around a common theme, captured by something I shall call Smuts’s Thesis.

Smuts’s Thesis: Immortality would lead to a general motivational collapse because it would sap all our decisions of significance.

Crucial to this argument is the notion of “significance”. Smuts’s spends a good deal of time fleshing out this concept and showing why exactly immortality would sap our decisions of it. In this post, we’ll consider two of the arguments he offers. The first, drawn from the work of Martha Nussbaum, I shall call the argument from finitude. The second, inspired by passages from Borges’s short story The Immortal, I shall call the argument from the insignificance of personal achievement. This second argument is only introduced in this post. Smuts offers various supporting arguments for it later in his article and we shall consider those in a subsequent post.

1. The Argument from Finitude
For our purposes, “significance” is simply the experiential property that makes continued existence worthwhile. The notion is undeniably fuzzy, but it is something we all typically experience. I write these blog posts because I think they are worthwhile: the experience of writing them is satisfying and I am motivated to do so. I studied and researched my PhD for similar reasons. But what exactly is the source of the significance associated with these actions?

Martha Nussbaum suggested that the source could be found in the finitude of human decision-making. The following quote from her expresses the point rather nicely:

The intensity and dedication with which very many human activities are pursued cannot be explained without reference to the awareness that our opportunities are finite, that we cannot choose those activities indefinitely many times. In raising a child, in cherishing a lover, in performing a demanding task of work or thought or artistic creation, we are aware, at some level, of the thought that each of these efforts is structured and constrained by finite time.(Therapy of Desire, p. 229)

The point here seems to be that, in making decisions, we are foreclosing ourselves from pursuing certain possible projects or outcomes. For instance, if I choose college A over college B to study for my first degree, I can’t go back and make the same decision again. My choice has consequences. I can withdraw from college A, or I can go back to college B later in life, perhaps, but the experience will be very different: I will be older; I will have lost some time; I may have other responsibilities that prevent me from having the full “college B experience”. What’s more, I can only do this kind of switching a limited number of times before other aspects of my life will catch up with me. For Nussbaum, the fact that my decisions have these sorts of consequences is one of things that makes them significant. It adds normative and prudential weight to them: due to finitude, I have to make my decisions count, for good or ill.

The problem with immortality, as Nussbaum points out later in the same passage, is that it robs our decisions of this normative and prudential weight. With an infinite amount of time to play with, and with the possibility of living as multiple overlapping selves, we never close ourselves off from possibilities. We can have as many bites at the cherry as we wish. This leads to the following argument against immortality:

(1) In a mortal existence, each decision has the potential (often realised) of foreclosing us from possibilities, i.e. we choose A over B knowing that in doing so A cannot be recovered.

(3) In an immortal existence, possibilities are never truly foreclosed from us, we can always go back over our decisions and try again.

(4) Therefore, in an immortal existence, our decisions would be sapped of their normative and prudential significance.

This is an intriguing argument. But one may have several concerns about it.

First, one may worry that in highlighting the positive, weight-giving aspects of finitude, Nussbaum misses the negative aspects. The fact that our decisions close us off from possibilities is one of the great sources of regret and unhappiness in life. One is reminded here of Marlon Brando’s famous “I coulda been a contender” speech from On the Waterfront. Would it not be a good thing to get a chance to realise one’s dreams; to learn properly from one’s mistakes? Finitude only allows for limited amount of this. Consequently, question marks are raised as to whether the significance that is taken away by infinitude is not compensated for by its benefits.

Second, one may worry about the truth of premise (3). As we shall see in a subsequent post, Smuts’s thinks there may be some possibilities foreclosed by the decisions made in an immortal life. He thinks they would not suffice to give us significance for other reasons, but still he thinks they exist.
Let’s not belabour the analysis of Nussbaum’s argument too much for there is another argument that leads to a similar conclusion, but perhaps makes the case in a more effective manner.

2. The Argument from the Insignificance of Personal Achievement
The second argument is inspired by Borges’s short story “The Immortal”. As with everything by Borges, I recommend it to your attention. It tells the story of a Roman soldier who is told of a fabled City of the Immortals which lies on the banks of a river. If one drinks the water from the river, one becomes immortal. In the story, the soldier finds the city, meets the Immortals, becomes immortal himself, and eventually longs to lose his immortality.

Several passages in the story reflect on what it would be like to be immortal. The theme that emerges is that immortality is something of a curse. The Immortals are depicted as listless and apathetic beings, bored with the experiences their bodies and minds afford them. The problem for them becomes clear in the following quote from the story:

"They knew that over an infinitely long span of time, all things happen to all men. As reward for his past and future virtues, every man merited every kindness—yet also every betrayal, as reward for his past and future iniquities. Much as the way in games of chance, heads and tails tend to even out, so cleverness and dullness cancel and correct each other. There are no spiritual or
intellectual merits….Homer composed the Odyssey; given infinite time, with infinite circumstances and changes, it is impossible that the Odyssey should not be composed at least once. No one is someone; a single immortal man is all men.

What emerges from this passage is that, given an infinite amount of time to play with, an immortal will lose all sense of personal achievement and merit. For in an infinite amount of time, everything that can happen to a person, or be made to happen by them, will eventually happen. They will exhaust all possibilities; they will do everything that it is possible to do. But this runs contrary to the conditions for personal achievement. To achieve something, one must triumph over adversity, one must make sacrifices, and, occasionally at least, one must distinguish oneself from one’s peers. Finitude is what makes adversity and sacrifice possible. If through mere perseverance one can do everything, then in no sense could one be said to achieved anything.

When we add in the assumption that the desire for personal achievement is a key motivator of human behaviour — i.e. that it is one of the things that lends significance to our decisions — we can reach the conclusion that an immortal human would lead an insignificant life. As follows:

(5) The possibility of personal achievement is one of the key motivators of human behaviour; one of the things that lends significance to our decisions.

(6) In order for there to be personal achievement there must be some sacrifice, some triumph over adversity, some increase in level of skill, or something that separates the person who achieves from everyone else.

(7) In an immortal existence everything that can happen or be made to happen will eventually happen to everyone through mere perseverance or chance; there is no triumph over adversity etc.

(8) Therefore, in an immortal existence, there will is no possibility of personal achievement (or, more mildly, the possibility will eventually disappear) (from 6 & 7).

(9) Therefore, in an immortal existence our decisions will lack significance and we will not be motivated to make them (from 5 & 8).

Again, this is an intriguing argument. I think the point it makes is intuitively appealing: a sense of achievement is an essential feature of a life worth living. But the big question mark hanging over this argument is premise (7). Is it really true that there can be no triumph over adversity, no differentiation in levels of skill, in an immortal existence? Smuts’s tries to answer that question. We’ll see what he has to say the next day.

Thursday, September 13, 2012

The Makropulos Affair is a famous three-act opera written by the Czech composer Leos Janacek, based on a play of the same name by Karel Capek. It tells the story of Elina Makropulos who, at the age of 42, is given an elixir of life by her father. The elixir allows her to live another 300 years at her current biological age. After those 300 years, she can choose to take the elixir again and live for another 300 years, or she can allow herself to die naturally. The opera/play concludes with her having lived out her 300 years and, having become bored with her existence, choosing to death over another 300 years. (Sort of: that’s not a perfect summary of what happens but it’s good enough for present purposes)

Elina’s story — which, speaking as a sci-fi fan, has obvious similarities with that of Heinlein’s Lazarus Long — was used by the philosopher Bernard Williams to make an argument about the tedium of immortality (“The Makropulos Case: Reflections on the Tedium of Immortality”). Williams argued that if we were truly immortal, we would end up like Elina, bored with our existence and longing to die. Obviously, this conclusion runs contrary to the beliefs of many of the world’s religions, which are all to keen to promise their followers immortality. Thus, if Williams is correct, and if immortality would indeed be the mother of all tediums, he will have shown something significant.

But is Williams right? Unsurprisingly, Williams’s article has generated a plethora of commentary over the years. I can’t hope to do justice to all of that commentary here. But I will look at one article that tries to defend Williams’s basic thesis. The article is called “Immortality and Significance” and it is by Aaron Smuts, whose work I considered earlier in the year when looking at the badness of death. Smuts argues that Williams reached the right conclusion, but for the wrong reasons. He tries to show what the right reasons are by, in part, drawing lessons from Borges’s short story “The Immortal”.

I’m going to be looking at Smuts’s article over the next few posts. In this first post, I want to set the scene by trying to summarise Williams’s argument, and some of the basic criticisms thereof.

1. Williams’s Argument against Immortality
Williams’s argument claims that an immortal existence would be a meaningless one, or rather, that we would have no reason to desire an eternal life. But we need to be careful here. What kind of life does Williams imagine us living for eternity? The answer is: a recognisably human life. In other words, he does not speculate on what it might be like to live forever in a godlike state, only about what it might be like living in one that is much like our own current state. This follows the model set down in the Makropulos Affair, where Elina lives a basically human existence, only over a much longer timespan.

As Smuts argues, there is a danger that Williams’s argument collapses into tautology at this point. The notion of a “human” life, if left underspecified, might be thought to include “normal human lifespan”, which would of course lead to the assumption of what needs to be proved. Fortunately, Williams offers some specification of what he means by a “human” life. He introduces two plausible constraints on an immortal human life:

Williams’s Conditions: An immortal human life must:

(a) preserve a sense of self over time, i.e. it must be me that is living the life in question;

(b) be such that the state of being in which the self will be, should it survive, allows the self to satisfy those aims it has in wanting to survive.

We’ll look at some criticisms of these conditions in a while, for now we’ll simply accept them and get into the nitty gritty of Williams’s argument. That argument holds that an immortal human life could not ultimately be meaningful or significant. Why is this? The reason has to do with the two different kinds of desire that motivate us in living our lives, i.e. that render life worthwhile for us. The two kinds of desire are:

Categorical desires: Systematic desires around which one organises one’s life activities, for example the desire to write a novel, to finish a research project, to build and run a successful company, or to raise a child to self-sufficiency. These are the kind of desires that make our lives (prudentially or normatively) worthwhile.

Contingent desires: Momentary, ephemeral or fleeting desires, which we need to satisfy in the short term, but which do not provide organising principles for our lives. For example, the desire for food, shelter, sexual release and so forth. These are simply like itches that need to be scratched and then forgotten.

Williams’s argument then is that in order to live a meaningful human existence, one needs to have a set of categorical desires that one wishes to satisfy. A set of merely contingent desires will not suffice because one will simply become bored by continually satisfying them. The problem is that over the course of an immortal existence, one will satiate all of one’s categorical desires. And once one does this, one’s life will be sapped of its motivational oomph. One will end up listless, bored and apathetic. Just like Elina Makropulos.

To put this in formal terms:

(1) In order for a recognisably human life to be meaningful, one must have a set of categorical desires that one wishes to satisfy otherwise one would live for merely contingent desires.

(2) If one lived forever in a recognisably human form, one would exhaust one’s set of categorical desires and become bored and apathetic as a result.

(3) Therefore, living forever in a recognisably human form would not be meaningful.

No doubt potential criticisms are pouring into your brain right now. Let’s consider a few before setting out Smuts’s own argumentative strategy. The criticisms break down into two categories: those that dispute the first premise, in particular its criteria for a recognisably human existence; and those that dispute the second premise, and argue that one would not exhaust one’s set of categorical desires (or, even if one did, this would not have the undesirable effects alluded to by Williams). Let’s consider both types of criticism in reverse order.

2. Would we exhaust our desires?
We’re looking first at criticisms of Williams’s argument that target the second premise. Here, I draw on the reasoning developed in Donald Bruckner’s article “Against the Tedium of Immortality”. I can’t hope to do justice to Bruckner’s article here, since it is somewhat tangential to Smuts’s argument, though Smuts’s does end up addressing something like Bruckner’s argument later in his article. Still, I thought it would be worth sharing some of what Bruckner has to say.

In essence, Bruckner exploits the “recognisably human” aspect of Williams’s argument. He does so by highlighting three features of human existence, neglected by Williams, that block the implications stated in premise two. The three features are:

Memory Decay: Human memory decays over time. It can do so in a way that people forget which desires they have satisfied. Consequently, immortal humans could become excited and motivated to pursue things they had once achieved but long forgotten.

Desire Rejuvenation: Even if human memory did not decay to the extent that immortals forgot what they had once done, they may have forgotten what those achievements felt like or, after a long period of time, may become rejuvenated by desires they had formerly satisfied.

Human Ingenuity: Human ingenuity, being what it is, we could expect immortals to come up with new projects, pastimes and pursuits that would stave off boredom at least long enough for desires for older projects to be rejuvenated.

Collectively, these three features undermine the second premise of Williams’s argument. The first two features suggest that even if we did exhaust the pool of categorical desires, we could dip into it again without this leading to boredom or apathy. And the third feature suggests that we can actually add to that pool anyway thanks to human ingenuity.

Bruckner’s article spends much time explaining how these three features — particularly human ingenuity — can defeat Williams’s argument. I’ll only pass a few comments on them here. The first is that needing memory decay to sustain the meaningfulness of immortality is troubling for at least two reasons. One is that it runs contrary to the desire of many humans to enhance their physical and cognitive capacities over time (including memory). Thus, suggesting an interesting tension between human enhancement and the sustainability of immortality. The other reason is that memory decay, if sufficiently far-reaching, might violate Williams’s identity condition, thus meaning that the same “self” is not experiencing the various states of being over time. But, of course, Williams’s condition might be flawed and we’ll be considering that in a moment.

As for the other two features of human life — rejuvenation and ingenuity — one has to wonder whether Bruckner really gives full attention to the fact that we would be living forever and whether he overestimates human ingenuity. While one can imagine dipping into the same pool of desires a couple of times, one also has to imagine that this would get pretty old after, say, the 1000th repetition. Similarly, while one can imagine a certain amount of ingenuity increasing the pool of categorical desires, one still has to wonder whether there would be a continuing motivation to do so over time. This is something that Smuts actually addresses later in his article, so I shall be discussing it in a future post.

3. What about Williams’s conditions on immortal existence?
Let’s move on now to discuss the second batch of criticisms of Williams’s argument. This batch focuses on the first premise. There are a number of different forms this kind of criticism can take — some perhaps pointing out that an unending life of contingent desire-satisfaction wouldn’t be all that bad — but I’m only going to look at one form. This form focuses on the conditions Williams’s sets down for immortality.

As we saw earlier, Williams claimed that a recognisably human immortality would have to preserve the same self over time, and that the state of being in survival would have to be desirable to the person who wishes to survive. As such, Williams is looking for a continued state of immortal existence, one in which the same person continues to survive forever. But in doing so he sets a trap since the “person” is partly constituted by their categorical desires, and hence it would follow that such a “person” would cease to exist once their desires are replaced. As Bruckner imagines in his appeal to human ingenuity. One could argue that Williams is overly prescriptive on this point, and that there are other possible forms of immortal existence that might be desirable.

For instance, there could be a type of serial immortality, in which one self or person dies only to be resuscitated in a new form which is discontinuous with the old one. This might be something like the notion of reincarnation, which is found in some world religions. The new self would not be bored even if they were living to satisfy categorical desires that the old self had already satisfied. Williams considers this possibility but dismisses it. How could it possibly be desirable to the old self to be told they will be reborn in a new form, and that this new form will lack any memory or connection to them? It is only desirable if “they” will be the ones living that life, otherwise they might as well be told that a total stranger will be happy in a future life.

Alternatively, there could a type of varied immortality, in which the self constantly flits between different roles and takes on new sets of categorical desires. The model for such an existence is provided by the story of Tiresias, the blind prophet of Thebes, who, according to legend, lived as a man and a woman over the course of several lives. Williams argued that an existence like that of Tiresias would not be desirable, but he was rather sketchy in providing grounds for this view. As Smuts points out in his commentary, Tiresias may have degraded or altered who “he” was over time, but that’s not necessarily undesirable. Indeed, our current lives, in particular our transition from childhood (with its attendant desires) to adulthood is much like this: we change our categorical desires over time, but our desires form overlapping sets such that who we are at any one moment in time in continuous with the immediately preceding moments. And that’s all we need for our existence to be desirable to us.

Smuts concludes, therefore, that Williams has not succeeded in showing why immortality would be undesirable to us. His goal is to provide arguments that correct for the flaws made by Williams. We’ll start looking at those arguments in the next post.

Wednesday, September 12, 2012

This is the last part in a series of posts looking at the so-called paradox of blackmail. The paradox arises from the fact that blackmail typically consists in threatening to do what one has a legal right to do in order to receive some kind of advantage. For example, threatening to release sensitive information about someone’s sexual history to others. This makes blackmail distinct from extortion which involves threatening illegal acts in order to receive advantage. It is easy to see why extortion should be criminalised, but it is slightly more difficult to see why blackmail should be.

Throughout this series we’ve been looking at a variety of theories that attempt to resolve the paradox. In essence, each of these theories point to some wrong-making feature of blackmail that makes it legitimate to criminalise it. Each of these theories has been found somewhat lacking. They either fail to show what is wrong with blackmail or fail to explain why we can criminalise a lawful threat coupled with a demand for payment, but yet should not criminalise the lawful threat itself.

The discussion over the previous four posts leads us to the possibility that blackmail ought to be legalised. In this final post, I want to consider this possibility in more detail by looking at Walter Block’s article “The Logic of the Argument on Behalf of Legalizing Blackmail”. As I mentioned in a previous post, Block is probably the foremost defender of the view that blackmail ought to be legalised and his article tries to set out the reasoning behind his defence of that position.

The remainder of the post breaks down into three sections. First, I’ll look at the basic “logic” of the argument in favour legalising blackmail. As we shall see, this argument isn’t actually logical (in the strict sense) but Block is well aware of that fact and tries to overcome it. Second, we’ll consider an initial counterexample to the argument. In dismissing this counterexample, we’ll allow ourselves to better understand Block’s argument. And third, we’ll consider more significant counterexamples and see how Block responds to them.

1. The Logic of the Argument
Block approaches blackmail, like everything else he approaches, from a libertarian perspective. Thus, an initial assumption behind his argument is that people will share the basic libertarian non-aggression axiom. According to this axiom, all actions should be legal (i.e. permitted) provided they do not violate the rights of another. Following this axiom, the government (or state) is only allowed to intervene and legally regulate activities if some rights-violation takes place.

Starting from a libertarian axiom like this is tricky. For many, the ideology of libertarianism has unwelcome connotations, and they might tend to reject the argument as a result. But my own feeling is that even if one is not a libertarian, the axiom to which Block appeals is not particularly controversial. The notion that people should be free to do as they please, as long as they respect the rights of others, is the default position of most liberal political philosophers. The controversy lies in how the axiom gets cashed out in the real world. Block’s blackmail argument is perhaps a good example of how some libertarians do this. If you disagree with that argument, it might be because you disagree with the particular interpretation of the non-aggression axiom involved in that argument, not because you reject the axiom outright.

Anyway, this leads to the question: how does Block move from the axiom to the conclusion that blackmail ought to be legalised? He does with the following kind of argument:

(1) Blackmail (typically) consists in two actions: (A) the demand for money for refraining from exercising one’s legal rights; and (B) entering into a contractual promise to refrain from exercising those legal rights.

(2) Action A is permissible: it does not violate anyone’s rights to demand money from them (provided they can refuse the demand, and you don’t threaten something unlawful).

(3) Action B is permissible: it does not violate anyone’s rights to enter into a contractual arrangement to refrain from exercising your legal rights.

(4) Therefore, blackmail is permissible.

Of course, this argument just encapsulates the paradox we have been discussing throughout this series. As Block himself notes, the argument effectively breaks down to the following form:

(P1) A is okay

(P2) B is okay

(C1) Therefore, A+B is okay.

But this form of argument is invalid. It commits the fallacy of composition. It makes inferences about a whole (A+B) from parts of that whole (A and B separately). Block is aware of this problem, and he tries to respond to it by considering an initial counterexample. We’ll look at this now.

2. The Carbon Monoxide Case
The fallacy of composition becomes readily apparent when we look at this argument:

(5) Exposing a person to carbon is harmless (A).

(6) Exposing a person to oxygen is harmless (B).

(7) Therefore, exposing a person to a combination of carbon and oxygen (specifically, carbon monoxide) is harmless (A+B).

The conclusion clearly does not follow. Carbon monoxide is toxic to humans if they are exposed to sufficient quantities of it. We know this. By assuming that what is true for the parts of a whole (Oxygen and Carbon separately) is true of the whole (Oxygen and Carbon combined) we have made a serious, and potentially fatal error. Since Block’s blackmail argument relies on a similarly structured inference it too must be flawed, right?

Possibly, but it is at this point that Block reveals his argumentative strategy. His goal is not to prove that his inference is correct, but rather to shift the burden of proof. As he puts “surely the burden of proof should lie on those urging a very paradoxical legal positions, namely, that two legitimate acts can, when combined, constitute an illegitimate one” (p. 10). He proposes that if he can show that there are disanalogies between the counterexamples and the case of blackmail, and if no one shows exactly why blackmail is wrong, he’ll have a solid defence his position.

So how does this work in this particular case? The argument would be that in combining oxygen and carbon we form a wholly new substance, one that has “emergent” properties that are distinct from those found in each element on its own. In particular, the carbon monoxide molecule has toxic properties not present in the individual substances. But in the case of blackmail, the two acts do not combine in this manner. Each action occurs sequentially and retains its essential character. There is no analogous poisonous interaction. Offering counterexamples in which the essential character of A and B is altered when they are combined will not suffice to defeat the pro-legalisation argument.

3. More Significant Counterexamples
The carbon monoxide case was just to whet the appetite. It is relatively easy to say that the combination of chemical elements is distinct from the combination of human actions. What about counterexamples that involve the latter? Block considers a few. Here’s one to get us started:

Nude Phone-Calling: It is permissible to phone someone while nude (A), and it is permissible to use a public payphone (B), but it is not permissible to use a public payphone while nude.

Leaving aside the surprisingly dated reference to public payphones, this counterexample does seem to work: it involves two seemingly permissible acts which combine to form an impermissible one. One could argue the propriety of public nudity if one wished, but we’ll assume here that it is not kosher. We have bigger fish to fry. We need to ask whether it is a true analogy to the case of blackmail. Unsurprisingly, Block argues that it is not. The problem is that the first action (A) is crucially underspecified. It is indeed okay to phone someone while nude within the privacy of your own home, but once you change the location of the act, its fundamental character is changed too. The problem with nude phone-calling is simply that it involves public nudity, whether one is using the phone or not is irrelevant. Once again, this is quite different from the blackmail case where both actions retain their independent qualities.

How about an alternative example. In the article under discussion, Block analyses several variations on the following scenario:

Double-Booked: John makes an appointment to have lunch with Sarah at 12:00p.m. tomorrow in Cork. John also makes an appointment to have lunch with Emma at 12:00p.m. tomorrow in Dublin. John has made incompatible promises.

Here we have two independently permissible acts — the making of lunch appointments with Sarah (A) and Emma (B) respectively — which combine to form impermissible outcome (one has to break one’s promise with one of the lunch guests). Again, somewhat superficially, this looks to follow the form of Block’s pro-blackmail argument, but with a different (negative) conclusion. Are the two scenarios truly analogous?

Block says “no”. The problem with double-booking oneself for lunch is that, in the ordinary case, the appointments will be made sequentially. Thus, John may initially make the appointment with Sarah and then make one with Emma. But because he already made one appointment, the second one is clearly impermissible. He had already made a commitment, by entering into the second agreement he was breaking that commitment, therefore he was doing something he should not have done. While it is okay to make lunch appointments with different people, it is not okay to this when one knows they will clash. Thus, the sequential nature of the acts renders the second act (B) wrongful in this kind of scenario.

But that is in the “ordinary case”, are there any extraordinary cases where things are different? A suggestion, considered at length by Block, is that of simultaneous lunch invitations. This could be done in two ways. First, by sending letters at the same time to two possible lunch dates, both offering to meet for lunch at the same time but in incompatible locations. Responding to this, Block points to the fact that even if the letters were mailed simultaneously, one could not write the letters simultaneously: one would have to be written after the other. And since the offer made in one would, if accepted, be incompatible with the offer made in the other, writing and mailing the second letter was impermissible.

The second way in which one could have simultaneous lunch invitations is if a hand gesture is understood and perceived by two different individuals to signal a lunch invitation. But the person making the invitation will not or cannot have lunch with both. This is a slightly fanciful example, for surely the person making the gesture would only have intended for one person to perceive and respond to the signal. That it had the unintended consequence of inviting the second person would not be enough to render it impermissible. But supposing they actually did knowingly intend to invite both persons with the hand gesture. The fact that they also knew they would not or could not dine with both, would mean we no longer have two independently permissible acts. Instead, we have a complex act (A+B) in which the person doing the gesturing falsely represented an intention to dine with two different people. This is akin to the poisonous interaction we get in the case of carbon monoxide. It is not like the blackmail case where the two acts retain their independent character.

With this last counterexample dismissed, Block believes he has defended his position. Of course, people could come up with other counterexamples, and they might well address Block’s criticisms, but it’s up to them to do so. This is perhaps the key message of Block’s article: the burden of proof should be on those who wish to criminalise blackmail not on those who wish to decriminalise it. He thinks they haven’t yet met that burden and, arguably, the other posts in this series confirm his analysis.

Tuesday, September 11, 2012

Just a quick post today. I’m currently preparing some lectures on the topic of law and morality. There are various ways in which to approach this topic. One could look at some of the abstract debates in legal philosophy between proponents of natural law and positivism; one could look at debates in legalisation and criminalisation, which I’ve been doing a lot lately; or one could look at the actors within the legal system and consider the role that moral reasoning has to play in their day-to-day activities.

It’s this third approach that I want to take today and I’ll do so by looking at lawyers and asking a common question: are lawyers immoral? To help me answer this, I’m going to enlist the help of Tim Dare’s book The Counsel of Rogues?, which looks at the so-called “standard conception” of the lawyer’s role and considers various criticisms and possible defences of that role.

Now, I’m only going to go over the first two chapters of the book, which is slightly unfair to Dare. Those chapters give an account of the standard conception and its major problems. But in the remainder of the book Dare tries to address those problems and offers a defence of (a moderated version of) the standard conception. I won’t be covering that here but I don’t want to give a misleading impression of Dare’s book: he actually does support a version of the standard conception.

Anyway, the remainder of the post is divided into two sections. The first outlines the standard conception and the second goes through the major criticisms of that conception.

1. The Standard Conception of the Lawyer’s Role
By and large, lawyers are greedy, self-serving, callous, money-grabbing and unsympathetic. Criminal defence lawyers often make careers out of defending the indefensible, doing their utmost for clients they know to be guilty, delaying justice for the victims of violent crime, and tying the police and courts up in ribbons of procedural regulations. And corporate lawyers are often even worse, prostituting themselves to the highest bidder, spending hours finding ways for companies to avoid paying taxes or searching for loopholes in environmental or safety regulations that the companies can exploit. To be sure, there are the odd few commendable Atticus Finch-type figures in the legal profession, but they are few and far between.

Or so, at least, goes a common and cynical view of the legal profession. What could provoke such ire for lawyers? The answer seems to stem from three core principles which lawyers adhere to in carrying out their duties. The principles are:

The Principle of Partisanship: A lawyer’s sole allegiance is to his/her client. This means that — within the limits of law but nothing else — a lawyer should do everything within his or her power to protect the interests of their client.

The Principle of Neutrality: A lawyer must remain neutral with respect to the moral merits of their client or of their client’s objectives. They must not allow their own moral view to distort or detract from the diligence or zealousness they put into defending their client’s case.

The Principle of Non-Accountability: A lawyer is not morally accountable for what they do when fulfilling their professional duties. Thus, if by the consequences of their actions, a guilty criminal is released and commits more crimes, the lawyer is not in any sense held to account for what has happened. In other words, a lawyer has a role-based excuse for their actions.

Taken together, these three principles form the core of the standard conception of the lawyer’s role. Interestingly, arguments can be made for why these three principles are a good thing. For instance, one can argue that by forcing lawyers to be neutral, partisan, but allowing them to non-accountable, the legal system ensures that everyone, no matter how socially oppressed or unacceptable, receives the legal protection they need. Nevertheless, there are many who criticise the standard conception. Let’s see what they have to say.

2. Criticisms of the Standard Conception
The standard conception of the lawyer’s role is criticised in several ways. We’ll look at five such criticisms here.

The first criticism is the most straightforward one: the standard conception encourages immoral or undesirable outcomes. Dare cites as an example the lauding of Max Steuer’s cross-examination in the Triangle Shirtwaist Fire Case. The case involved the owners of clothes-factory being prosecuted for manslaughter following the deaths of 146 workers in a factory fire. The allegation was that the company had shut the doors of the factory during working hours, contrary to legislation. Steuer, acting on behalf of the owners, managed to secure an acquittal after he undermined the testimony of one of the survivors of the blaze. The problem is that Steuer was praised for what he did despite the fact that most commentators believe the company owners were in the wrong, that they had shut the doors, and that the just result was prevented by Steuer’s professional skill. Thus, Steuer is commended despite contributing to an immoral outcome. This is not welcome.

The second criticism is existentialist in form and comes from the work of Gerald Postema. His argument is that by sticking to role-related responsibilities and duties, we deny one of our essential qualities, namely our freedom (and responsibility) to shape our own destiny. When lawyers identify with the constraints of their roles they are evading both their freedom and responsibility. This is a metaphysically problematic criticism, but it may appeal to some.

The third criticism is that the standard conception leads to moral insensitivity outside the role of the lawyer. In other words, the claim is that the kind of moral neutrality expected of lawyers within their professional roles will have spillover effects on the rest of their lives. The likelihood of this is particularly high when the individuals in question take their careers very seriously and thus find it increasingly difficult to “shake off” their professional garbs. Dare uses the example of the butler in Kazuo Ishiguro’s book The Remains of the Day who cannot fathom stepping outside the duties and stiff-upper-lippedness expected of a butler. In the story this has rather tragic results. Could something similar happen to the lawyer?

The fourth criticism is essentially the same only this time it suggests that the standard conception can lead to insensitivity within the lawyer’s professional life too. The argument is somewhat perverse in light of what has previously been said, but goes as follows: oftentimes lawyers have to empathise with the moral concerns of their clients. For instance, the person drafting a will who wishes to be “fair” to his offspring. But, so the argument goes, the moral neutrality that the lawyer has grown accustomed to may prevent them from empathising properly with such concerns.

This feeds into the fifth criticism, which is that the standard conception has a negative effect on lawyer’s morale and on the standing of the legal profession. By adhering to the three principles of the standard conception, lawyers open themselves up to being criticised as greedy, callous and immoral. This undermines the confidence and esteem in which they are held by the public, and has a negative effect on the individual lawyer and the profession as whole. Furthermore, lawyers may be forced to live with demoralising psychological effects stemming from their professional actions. For example, by being forced to support actions they themselves find immoral and thereby being forced to compartmentalise their moral lives.

I find this last criticism particularly interesting given that I know many practicing lawyers and have heard them complain about this themselves. I wonder whether this is an initial struggle with the demands of the profession which is eventually overcome, possibly once moral insensitivity has set in.

Okay, I’m going to leave it there. As I said earlier, Dare thinks it is possible to rehabilitate the standard conception and defend it from these criticisms. This is largely because the standard conception isn’t quite as simplistic as it is made out to be in this post. Dare thinks that lawyers do not have to defend outright immorality or compromise their moral lives in the manner envisaged here. Once we have a clearer conception of what the lawyer’s role in society really is, we will have a clearer sense of the obligations that attach to that role, and once we have that we’ll see how it possible to avoid these criticisms. But if you want to find out what this clearer conception of the lawyer’s role is, you’ll need to read Dare's book.

Friday, September 7, 2012

This is third post in a brief series looking at the ethics of incest, specifically at whether incest should be decriminalised. Making use of Vera Bergelson’s article — “Vice is Nice but Incest is Best” — the series is examining the arguments traditionally used to support criminalisation.

So far, we’ve looked at four different arguments. In part one, we looked at arguments based on universal tradition and religious authority. We found both to be lacking. In part two, we looked at arguments from genetic defectiveness and disruption of the family unit. Although popular, and oft-cited as the primary reasons for criminalising the practice, both arguments were deemed to be flawed.

In this post we’ll look at two more arguments. The first is the argument from the prevention of sexual abuse; the second is the argument from immorality and offensiveness. We will also conclude by briefly considering the likely effects of decriminalising incest.

1. The Argument from the Prevention of Sexual Abuse
This argument is neither persuasive nor philosophically interesting, but it is surprisingly pervasive so we need to give it some consideration. The argument claims that incest laws are needed in order to prevent sexual abuse within families. One can understand the concern. Children and dependent family members are often abused by older siblings and parents so anything that can help to prevent this kind of abuse from occurring is to be welcomed.

Although the concern is understandable, is the claim made on behalf of incest laws a good one? To answer that, let’s first formalise the argument:

(1) If an activity constitutes a form sexual abuse and domination, it ought to be criminalised.

(2) Incest constitutes a form of sexual abuse or domination.

(3) Therefore, incest ought to be criminalised.

As I say, the general principle stated by premise (1) looks pretty sound to me. But the claim made by premise (2) seems deeply flawed. Most importantly, as specifically defined in the first part of this series, incest involves consensual sexual relations between adult relatives. As such it is not a form of abuse or domination. This definition is mirrored in most incest statutes, which typically ban all consensual sexual relations between close relatives and ban marriages between such relatives too. So, in other words, those laws do not limit themselves to abusive relationships.

Of course, that’s not to say that abuse or domination do not take place within families or that we should do nothing about it. But this brings us to the second point: there are plenty of other laws on the books that cover abuse and sexual domination within families. Looking solely to the legal position in England and Wales, we find that sections 5-8 of the Sexual Offences Act 2003 make it an offence to engage in or incite sexual activity with children under the age of 13, irrespective of whether they consent (because, broadly speaking, children below that aged are deemed incapable of consenting to such activities). These laws would cover the kind of scenario envisaged by this particular defence of incest laws thus rendering specific incest laws redundant.

2. Arguments from Immorality and Offence
The final argument in favour of the criminalisation of incest may be called the argument from immorality and offensiveness. Although I am fan of linguistic purity in matters philosophical — and although I personally think it best not to conflate “immorality” and “offensiveness” — I break my own rules here in the interests of legal-historical accuracy. Debates about so-called “morals legislation” have been common in the law for a long time, and within those debates one often finds the concept of immorality being deployed coextensively with the concept of offensive conduct.

Perhaps the best example of this comes from the famous Hart-Devlin debate on the decriminalisation of homosexuality. In the 1950s, the Wolfenden Committee wrote a report calling for the decriminalisation of homosexual conduct in England and Wales. This was partly on the grounds that such conduct was a matter of private “morality”, and not something for legal system to get involved in.

Patrick Devlin, a well-known law lord in the mid-20th century, wrote a response to the Wolfenden Committee’s report, arguing that the legal system could justifiably involve itself in such matters of private morality. He claimed that societies tend to disintegrate when people stop following a common moral code and hence, if homosexuality is a “vice so abominable that its mere presence is an offence” to that code it ought to be criminalised. HLA Hart, the Oxford don and legal philosopher, replied in fairly standard liberal form by arguing that the law should only get involved when a practice had some demonstrably harmful effect, or violated somebody’s autonomy, of which homosexuality did neither.

Devlin’s position is effectively a form of populism not moralism. It calls for legal rules to track the moral opinions of the majority of people. If conduct is deemed offensive or abominable by that majority, then we ought to criminalise it, irrespective of whether it breaches some acceptable moral principle. I’ve always found it odd that this has been termed “moralism” by many writers in this area, but that’s the term that has stuck.

Devlin’s argument can of course be co-opted in order to defend the criminalisation of incest. As follows:

(4) If a type of conduct is deemed deeply offensive by the (vast) majority of society, it ought to be criminalised.

(5) Incest is deemed deeply offensive by the vast majority of society.

(6) Therefore, incest ought to be criminalised.

Marking something of a change from the previous arguments, the second premise of this one (premise (5)) looks like it is actually true. Most people do express extreme disgust and revulsion at the notion of incest, one can assume therefore that they do find it to be deeply offensive.

The problem is that it is not clear that offensiveness is a good ground for criminalisation. Indeed, the very fact that similar grounds have been invoked in order to outlaw practices we now deem morally acceptable (including homosexuality, and mixed-race marriages) or to demonise certain members of society (including Blacks and Jews) suggests we’d be on very shaky ground if we used such a principle.

In their recent work on the principles of criminalisation, Simester and von Hirsch, argue that the offence principle is unlikely to be morally sufficient to criminalise some form of conduct unless that conduct also has an obviously harmful aspect to it. Consensual sexual relationships between adult close relatives do not seem to have such an aspect, as we have seen elsewhere in this series, so there would appear to be no good grounds for criminalising it.

3. Conclusion
Following Bergelson’s work, this series has explored the traditional rationales for the criminalisation of incest. As we have seen, none of these rationales is particularly persuasive. The arguments from universal tradition and religious authority assign inappropriate moral weight to both. The argument from genetic defectiveness fails to justify all aspects of typical incest statutes and would outlaw other sexual unions that people find morally acceptable. The argument from protection of the family unit fails to account for the criminalisation of adult consensual incest and for the non-criminalisation of other activities that might undermine the family unit. The argument from the prevention of abuse is redundant since other laws cover abusive intra-familial relationships, and the argument from immorality and offensiveness is unmerited in a liberal society.

That seems to lead to the conclusion that incest ought to be decriminalised. As I noted in part one, this simply means that punitive sanctions should no longer be imposed upon those who engage in it. That does not mean that incest ought to be endorsed or encouraged. Indeed, as Bergelson notes at the end of her article, the very fact that so many people find incest to be repugnant makes it unlikely that decriminalisation would have this effect. The taboo against incest seems to be deeply engrained, with a strong biological and developmental component (the so-called Westermarck effect), thus its decriminalisation is unlikely to have a serious effect.